Environmental Decisions of the U.S. Court of Appeals, all Circuits. Summaries provided by Waste Information & Management
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Thursday, March 31, 2011

Mar 30: In the U.S. Court of Appeals, Federal Circuit, Case No. 2009-5121 & 2010-5029. Appeals from the United States Court of Federal Claims. The Appeals Court explains that the Arkansas Game and Fish Commission (the Commission) filed a physical takings claim against the United States in the Court of Federal Claims (Claims Court), alleging that the United States had taken its property without just compensation. The Commission claimed that temporary deviations by the Army Corps of Engineers (the Corps) from an operating plan for Clear-water Dam during the years 1993 to 2000 caused in-creased flooding in the Commission's Dave Donaldson Black River Wildlife Management Area (Management Area). The flooding, in turn, caused excessive timber mortality in the Management Area. The Claims Court concluded that the United States had taken a temporary flowage easement over the Commission's property and awarded a total of $5,778,757.90 in damages. Ark. Game & Fish Comm'n v. United States, 87 Fed. Cl. 594, 617, 647 (2009).

The Appeals Court, however, in a split decision, concluded that the Corps' deviations did not constitute a taking, and reversed the decision of the claims court. The majority ruled, "Because the deviations from the 1953 plan were only temporary, they cannot constitute a taking. The actions at most created tort liability. We recognize that in other contexts the distinction between a temporary and permanent release plan may be difficult to define. The government cannot, of course, avoid takings liability by characterizing inevitably recurring events as merely a series of temporary decisions. Here, however, the Corps' regulatory scheme has itself clearly distinguished between permanent and temporary release rates. The deviations in question were plainly temporary and the Corps eventually reverted to the permanent plan. Under such circumstances, the releases cannot be characterized as inevitably recurring."

The dissent Judge concluded, "The findings of the Court of Federal Claims are not disputed by my colleagues as to the nature, cause, and amount of the damage to the Arkansas property. The determination that a compensable taking occurred is fully in conformity with precedent. My colleagues' ruling contradicts the entire body of precedent relating to the application of the Fifth Amendment to government-induced flooding. I respectfully dissent."

Mar 30: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-72288. On Petition for Review of an Order of the U.S. EPA. The Appeals Court explains that pursuant to the Clean Air Act, the U.S. EPA regulates emissions of particles known as particulate matter. In order to meet statutory and regulatory requirements, California submitted a state implementation plan (SIP) to the EPA for its approval. The SIP contains, among many other things, limits on motor vehicle emissions for the years 2009 and 2012. Although the EPA's overall approval process of the SIP is still underway, the Agency has made a preliminary finding that the SIP's limits on motor vehicle emissions for years 2009 and 2012 are adequate for purposes of the State's transportation plans and projects.

The EPA's adequacy determination allows California to approve transportation plans and projects that otherwise could not proceed. Pursuant to 42 U.S.C. § 7607(b)(1), several environmental groups (Natural Resources Defense Council (NRDC), et al) filed the petition for review. Petitioners assert that the EPA's adequacy determination was arbitrary, capricious, or otherwise contrary to law. The Appeals Court denied the petition.

The Appeals Court explains it decision further saying, "Petitioners challenge the EPA's final agency action -- its determination that the baseline budgets were 'adequate' for transportation conformity purposes. Our jurisdiction is limited to deciding whether that decision was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. 5 U.S.C. § 706(2)(A); see also 42 U.S.C. § 7607(b) (describing the extent of jurisdiction); Envtl. Def., 467 F.3d at 1332-33 (discussing the limits of jurisdiction under § 7607(b)). This limitation is important because, at many times in Petitioners' briefs, they appear to be challenging other, earlier actions by the EPA." The Appeals Court cites for example that, "Petitioners appear, at times, to argue that the placement of air quality monitors is erroneous because none of those monitors is in close proximity to a highway. But as the government correctly points out, the placement of monitors was the subject of earlier rulemaking and, therefore, cannot be challenged in this action."

On the main issue of, "challenging the EPA's application of those rules to California's submitted motor vehicle emissions budgets," the Appeals Court says, "Petitioners argue that the EPA failed to consider a relevant factor -- attainment -- when it made its adequacy determination concerning the milestone-year budgets. The EPA concedes that it did not consider Petitioners' attainment data for purposes of the milestone-year budgets but argues that nothing requires it to do so. Therefore, the parties' dispute boils down to whether the EPA must consider attainment data when conducting its adequacy review of a budget for a milestone year."

On the issue of compliance with the Conformity Rule, the Appeals Court points out that, "Quoting only portions of the conformity rule, petitioners argue that the rule requires that the milestone-year budgets be 'consistent with . . . attainment.' . . . But Petitioners' repeated quotation of only part of the rule is misleading. The full text of the rule flatly contradicts their reading. A budget must be 'consistent with applicable requirements for reasonablefurther progress, attainment, or maintenance (whichever isrelevantto the given implementation plan submission). (emphases contained in original). The plain-text meaning of the rule is clear: For budgets concerning milestone years, reasonable further progress requirements are relevant; for budgets concerning

the attainment year, attainment requirements are relevant; and for budgets concerning maintenance years, maintenance requirements are relevant. Because the approved budgets at issue concern milestone years only, the only relevant requirements are reasonable further progress requirements; attainment requirements are not relevant."

Finally, the Appeals Court said, "In summary, the EPA's reading of its own regulations, which does not require an approvable attainment demonstration, is reasonable. Accordingly, an alternative reading to the agency's interpretation is not 'compelled by the regulation's plain language.' Thomas Jefferson Univ., 512 U.S. at 512. We have carefully considered all of Petitioners' other arguments as well, but we find none of them persuasive."

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